Exhibit 4.1


 


 


BALL CORPORATION


 






 


INDENTURE


 


DATED AS OF MARCH 27, 2006


 






 


THE BANK OF NEW YORK TRUST COMPANY, N.A.


 


Trustee


 






 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture

  Act Section

  	
   

  	
  

  Indenture Section

  
	
  310(a)(1)

  	
  7.10

  
	
   

  	
  (a)(2)

  	
  7.10

  
	
   

  	
  (a)(3)

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
  7.10

  
	
   

  	
  (b)

  	
  7.10

  
	
   

  	
  (c)

  	
  N.A.

  
	
  311(a)

  	
  7.11

  
	
   

  	
  (b)

  	
  7.11

  
	
   

  	
  (c)

  	
  N.A.

  
	
  312(a)

  	
  2.06

  
	
   

  	
  (b)

  	
  11.03

  
	
   

  	
  (c)

  	
  11.03

  
	
  313(a)

  	
  7.06

  
	
   

  	
  (b)(2)

  	
  7.07

  
	
   

  	
  (c)

  	
  7.06; 11.02

  
	
   

  	
  (d)

  	
  7.06

  
	
  314(a)

  	
  4.03; 11.02

  
	
   

  	
  (b)

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
  11.04

  
	
   

  	
  (c)(2)

  	
  11.04

  
	
   

  	
  (c)(3)

  	
  N.A.

  
	
   

  	
  (e)

  	
  11.05

  
	
   

  	
  (f)

  	
  N.A.

  
	
  315(a)

  	
  7.01

  
	
   

  	
  (b)

  	
  7.05, 11.02

  
	
   

  	
  (c)

  	
  7.01

  
	
   

  	
  (d)

  	
  7.01

  
	
   

  	
  (e)

  	
  6.11

  
	
  316(a) (last
  sentence)

  	
  2.10

  
	
   

  	
  (a)(1)(A)

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
  6.04

  
	
   

  	
  (a)(2)

  	
  N.A.

  
	
   

  	
  (b)

  	
  6.07

  
	
   

  	
  (c)

  	
  2.13

  
	
  317(a)(1)

  	
  6.08

  
	
   

  	
  (a)(2)

  	
  6.09

  
	
   

  	
  (b)

  	
  2.05

  
	
  318(a)

  	
  11.01

  
	
   

  	
  (b)

  	
  N.A.

  
	
   

  	
  (c)

  	
  11.01

  
				



 






N.A. means not applicable.


*This Cross-Reference Table is not part of this
Indenture.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1.

  
	
  DEFINITIONS AND INCORPORATION

  
	
  BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
  1

  
	
  Section 1.02

  	
  Other Definitions

  	
  5

  
	
  Section 1.03

  	
  Incorporation by Reference of Trust
  Indenture Act

  	
  6

  
	
  Section 1.04

  	
  Rules of
  Construction

  	
  6

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2.

  
	
  THE NOTES

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Issuable in Series

  	
  7

  
	
  Section 2.02

  	
  Establishment
  of Terms of Series of Notes

  	
  7

  
	
  Section 2.03

  	
  Execution
  and Authentication

  	
  9

  
	
  Section 2.04

  	
  Registrar
  and Paying Agent

  	
  9

  
	
  Section 2.05

  	
  Paying Agent
  to Hold Money in Trust

  	
  9

  
	
  Section 2.06

  	
  Holder Lists

  	
  10

  
	
  Section 2.07

  	
  Transfer and
  Exchange

  	
  10

  
	
  Section 2.08

  	
  Replacement
  Notes

  	
  10

  
	
  Section 2.09

  	
  Outstanding
  Notes

  	
  11

  
	
  Section 2.10

  	
  Treasury
  Notes

  	
  11

  
	
  Section 2.11

  	
  Temporary
  Notes

  	
  11

  
	
  Section 2.12

  	
  Cancellation

  	
  11

  
	
  Section 2.13

  	
  Defaulted
  Interest

  	
  11

  
	
  Section 2.14

  	
  Global Notes

  	
  12

  
	
  Section 2.15

  	
  CUSIP Number

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3.

  
	
  REDEMPTION AND PREPAYMENT

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Notice to
  Trustee

  	
  13

  
	
  Section 3.02

  	
  Selection of
  Notes to Be Redeemed

  	
  13

  
	
  Section 3.03

  	
  Notice of
  Redemption

  	
  14

  
	
  Section 3.04

  	
  Effect of
  Notice of Redemption

  	
  14

  
	
  Section 3.05

  	
  Deposit of
  Redemption Price

  	
  14

  
	
  Section 3.06

  	
  Notes
  Redeemed in Part

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4.

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Payment of
  Principal and Interest

  	
  15

  
	
  Section 4.02

  	
  Maintenance
  of Office or Agency

  	
  15

  
	
  Section 4.03

  	
  Reports

  	
  16

  
	
  Section 4.04

  	
  Compliance
  Certificate

  	
  16

  
	
  Section 4.05

  	
  Taxes

  	
  17

  
	
  Section 4.06

  	
  Stay,
  Extension and Usury Laws

  	
  17

  
	
  Section 4.07

  	
  Corporate
  Existence

  	
  17

  
				



 


i

















 


	
  ARTICLE 5.

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Merger,
  Consolidation or Sale of Assets

  	
  17

  
	
  Section 5.02

  	
  Successor
  Corporation Substituted

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6.

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Events of
  Default

  	
  18

  
	
  Section 6.02

  	
  Acceleration

  	
  19

  
	
  Section 6.03

  	
  Other
  Remedies

  	
  20

  
	
  Section 6.04

  	
  Waiver of
  Past Defaults

  	
  20

  
	
  Section 6.05

  	
  Control by
  Majority

  	
  20

  
	
  Section 6.06

  	
  Limitation
  on Suits

  	
  21

  
	
  Section 6.07

  	
  Rights of
  Holders of Notes to Receive Payment

  	
  21

  
	
  Section 6.08

  	
  Collection
  Suit by Trustee

  	
  21

  
	
  Section 6.09

  	
  Trustee May
  File Proofs of Claim

  	
  21

  
	
  Section 6.10

  	
  Priorities

  	
  22

  
	
  Section 6.11

  	
  Undertaking
  for Costs

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7.

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Duties of
  Trustee

  	
  22

  
	
  Section 7.02

  	
  Rights of
  Trustee

  	
  23

  
	
  Section 7.03

  	
  Individual
  Rights of Trustee

  	
  24

  
	
  Section 7.04

  	
  Trustee’s
  Disclaimer

  	
  25

  
	
  Section 7.05

  	
  Notice of
  Defaults

  	
  25

  
	
  Section 7.06

  	
  Reports by
  Trustee to Holders of the Notes

  	
  25

  
	
  Section 7.07

  	
  Compensation
  and Indemnity

  	
  25

  
	
  Section 7.08

  	
  Replacement
  of Trustee

  	
  26

  
	
  Section 7.09

  	
  Successor
  Trustee by Merger, Etc.

  	
  27

  
	
  Section 7.10

  	
  Eligibility;
  Disqualification

  	
  27

  
	
  Section 7.11

  	
  Preferential
  Collection of Claims Against Company

  	
  27

  
	
  Section 7.12

  	
  Trustee’s
  Application for Instructions from the Company

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8.

  
	
  LEGAL DEFEASANCE AND COVENANT
  DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Option to
  Effect Legal Defeasance or Covenant Defeasance

  	
  28

  
	
  Section 8.02

  	
  Legal
  Defeasance and Discharge

  	
  28

  
	
  Section 8.03

  	
  Covenant
  Defeasance

  	
  28

  
	
  Section 8.04

  	
  Conditions
  to Legal or Covenant Defeasance

  	
  29

  
	
  Section 8.05

  	
  Deposited
  Money and Government Securities to Be Held in Trust; Other Miscellaneous
  Provisions

  	
  30

  
	
  Section 8.06

  	
  Repayment to
  Company

  	
  30

  
	
  Section 8.07

  	
  Reinstatement

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9.

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Without
  Consent of Holders of Notes

  	
  31

  
	
  Section 9.02

  	
  With Consent
  of Holders of Notes

  	
  31

  
	
  Section 9.03

  	
  Compliance
  with Trust Indenture Act

  	
  32

  



 


ii

















 


	
  Section 9.04

  	
  Revocation
  and Effect of Consents

  	
  33

  
	
  Section 9.05

  	
  Notation on
  or Exchange of Notes

  	
  33

  
	
  Section 9.06

  	
  Trustee
  Protected

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10.

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  	
   

  	
   

  
	
  Section
  10.01

  	
  Satisfaction
  and Discharge

  	
  33

  
	
  Section
  10.02

  	
  Application
  of Trust Money

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11.

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section
  11.01

  	
  Trust
  Indenture Act Controls

  	
  34

  
	
  Section
  11.02

  	
  Notices.

  	
  34

  
	
  Section
  11.03

  	
  Communication
  by Holders of Notes with Other Holders of Notes

  	
  35

  
	
  Section
  11.04

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
  35

  
	
  Section
  11.05

  	
  Statements
  Required in Certificate

  	
  36

  
	
  Section
  11.06

  	
  Rules by
  Trustee and Agents

  	
  36

  
	
  Section
  11.07

  	
  Calculation
  of Foreign Currency Amounts

  	
  36

  
	
  Section
  11.08

  	
  No Personal
  Liability of Directors, Officers, Employees and Stockholders

  	
  36

  
	
  Section
  11.09

  	
  Governing Law

  	
  36

  
	
  Section
  11.10

  	
  No Adverse
  Interpretation of Other Agreements

  	
  37

  
	
  Section
  11.11

  	
  Successors

  	
  37

  
	
  Section
  11.12

  	
  Severability

  	
  37

  
	
  Section
  11.13

  	
  Counterpart
  Originals

  	
  37

  
	
  Section
  11.14

  	
  Table of
  Contents, Headings, Etc.

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12.

  
	
  SINKING FUNDS

  
	
   

  	
   

  	
   

  
	
  Section
  12.01

  	
  Applicability
  of Article

  	
  37

  
	
  Section
  12.02

  	
  Satisfaction
  of Sinking Fund Payments with Notes

  	
  37

  
	
  Section
  12.03

  	
  Redemption
  of Notes for Sinking Fund

  	
  38

  



 


iii

















 


INDENTURE dated as of March 27, 2006 by and among Ball
Corporation, an Indiana corporation (the “Company”)
and The Bank of New York Trust Company, N.A., a New York banking corporation,
as trustee (the “Trustee”).


 


The Company and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the Notes issued under this Indenture.


 


ARTICLE 1.

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section 1.01           Definitions.


 


“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For purposes of this definition, “control,” as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise; provided, that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be in control. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.


 


“Agent”
means any Registrar, Paying Agent or co-registrar.


 


“Attributable Debt”
in respect of a sale and leaseback transaction means, at the time of
determination, the present value of the obligation of the lessee for net rental
payments during the remaining term of the lease included in such sale and
leaseback transaction including any period for which such lease has been
extended or may, at the option of the lessor, be extended. Such present value
shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.


 


“Bankruptcy Law”
means Title 11, U.S. Code or any similar federal or state law for the relief of
debtors.


 


“Board of Directors”
means:


 


(1)                                  with respect to a corporation, the board of
directors of the corporation or any committee thereof duly authorized to act on
behalf of such board;


 


(2)                                  with respect to a partnership, the Board of
Directors of the general partner of the partnership;


 


(3)                                  with respect to a limited liability company,
the managing member or members or any controlling committee of managing members
or managers thereof; and


 


(4)                                  with respect to any other Person, the board
or committee of such Person serving a similar function.


 


“Board Resolution” means a copy
of a resolution certified by the Secretary or an Assistant Secretary of the
Company to have been adopted by the Board of Directors or pursuant to
authorization by the Board of Directors and to be paid in full force and effect
on the date of the certificate and delivered to the Trustee.


 

















 


“Business Day”
means any day other than a Legal Holiday.


 


“Capital Lease
Obligation” means, at the time any determination thereof is to be
made, the amount of the liability in respect of a capital lease that would at
that time be required to be capitalized on a balance sheet in accordance with
GAAP.


 


“Capital Stock”
means:


 


(1)           in
the case of a corporation, corporate stock;


 


(2)           in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents, however designated, of corporate
stock;


 


(3)           in
the case of a partnership or limited liability company, partnership or
membership interests, whether general or limited; and


 


(4)           any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.


 


“Company”
means Ball Corporation, and any and all successors thereto.


 


“Company Order” means a written
order signed in the name of the Company by two Officers, one of whom must be
the Company’s principal executive officer, principal financial officer or
principal accounting officer.


 


“Corporate Trust
Office of the Trustee” shall be at the address of the Trustee
specified in Section 12.02 hereof or such other address as to which the Trustee
may give notice to the Company.


 


“Custodian”
means the Trustee, as custodian with respect to the Notes in global form, or
any successor entity thereto.


 


“Default”
means any event that is, or with the passage of time or the giving of notice or
both would be, an Event of Default.


 


“Depositary”
means, with respect to the Notes of any Series issuable or issued in whole or
in part in the form of one or more Global Notes, the person designated as
Depositary for such Series by the Company, which Depositary shall be a clearing
agency registered under the Exchange Act; and if at any time there is more than
one such person, “Depositary” as used with respect to the Notes of any Series
shall mean the Depositary with respect to the Notes of such Series.


 


“Discount Note”
means any Note that provides for an amount less than the stated principal
amount thereof to be due and payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.02.


 


“Dollars” and “$” means the currency of The United States of America.


 


“ECU” means the European Currency
Unit as determined by the Commission of the European Union.


 


“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire
Capital Stock, but excluding any debt security that is convertible into, or
exchangeable for, Capital Stock.


 


2

















 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended.


 


“Foreign Currency” means any
currency or currency unit issued by a government other than the government of
The United States of America.


 


“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board and such other statements by such other entity as
have been approved by a significant segment of the accounting profession, which
are applicable as of the date of this Indenture.


 


“Global Note” or “Global Notes” means a Note or Notes, as the case may be, in
the form established pursuant to Section 2.02 evidencing all or part of a
Series of Notes, issued to the Depositary for such Series or its nominee, and
registered in the name of such Depositary or nominee.


 


“Government
Securities” means direct obligations of, or obligations guaranteed
by, the United States of America, and the payment for which the United States
pledges its full faith and credit.


 


“Guarantee”
means a guarantee, other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any
manner including, without limitation, by way of a pledge of assets or through
letters of credit or reimbursement agreements in respect thereof, of all or any
part of any Indebtedness.


 


“Hedging
Obligations” means, with respect to any specified Person, the obligations
of such Person under:


 


(1)           interest
rate swap agreements, interest rate cap agreements and interest rate collar
agreements; and


 


(2)           other
agreements or arrangements in respect of such Person’s exposure to fluctuations
in commodity prices, currency exchange rates or interest rates and, in each
case, not entered into for speculative purposes.


 


“Holder”
means a Person in whose name a Note is registered.


 


“Indebtedness”
means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent:


 


(1)           in
respect of borrowed money;


 


(2)           evidenced
by bonds, notes, debentures or similar instruments or letters of credit, or
reimbursement agreements in respect thereof;


 


(3)           in
respect of banker’s acceptances;


 


(4)           representing
Capital Lease Obligations;


 


(5)           representing
the balance deferred and unpaid of the purchase price of any property, except
any such balance that constitutes an accrued expense or trade payable; or


 


(6)           representing
any Hedging Obligations,


 


3

















 


if and to the extent any of the preceding items, other
than letters of credit and Hedging Obligations, would appear as a liability
upon a balance sheet of the specified Person prepared in accordance with GAAP. In
addition, the term “Indebtedness” includes all Indebtedness of others secured
by a Lien on any asset of the specified Person, whether or not such
Indebtedness is assumed by the specified Person, and, to the extent not
otherwise included, the Guarantee by the specified Person of any Indebtedness
of any other Person or any liability of any person, whether or not contingent
and whether or not it appears on the balance sheet of such Person.


 


The amount of any Indebtedness outstanding as of any
date shall be:


 


(1)           the
accreted value of the Indebtedness, in the case of any Indebtedness that does
not require the current payment of interest; and


 


(2)           the
principal amount of the Indebtedness, together with any interest on the
Indebtedness that is more than 30 days past due, in the case of any other
Indebtedness.


 


“Indenture”
means this Indenture, as amended, supplemented or restated from time to time
and shall include the form and terms of particular Series of Notes established
as contemplated hereunder.


 


“Legal Holiday”
means a Saturday, a Sunday or a day on which banking institutions in the City
of New York, the city in which the principal office of the Trustee is located
or at a place of payment are authorized by law, regulation or executive order
to remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue on such payment for the intervening
period.


 


“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not
filed, recorded or otherwise perfected under applicable law, including any
conditional sale or other title retention agreement or any lease in the nature
thereof; provided that in no
event shall an operating lease be deemed to constitute a Lien.


 


“Notes”
means notes or other debt instruments of the Company of any Series issued under
this Indenture.


 


“Officer”
means, with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.


 


“Officers’
Certificate” means a certificate signed on behalf of the Company by
two Officers of the Company, one of whom must be a vice-president, the
principal financial officer, the treasurer or the principal accounting officer
of the Company, that meets the requirements of Sections 12.04 and 12.05 hereof.


 


“Opinion of Counsel”
means an opinion from legal counsel who is acceptable to the Trustee, that
meets the requirements of Sections 11.04 and 11.05 hereof. The counsel may be
an employee of or counsel to the Company, any Subsidiary of the Company or the
Trustee.


 


“Person”
means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability
company or government or any agency or political subdivision thereof or any
other entity.


 


4

















 


“Responsible
Officer” when used with respect to the Trustee, means any officer
within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person’s knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.


 


“SEC”
means the Securities and Exchange Commission.


 


“Securities Act”
means the Securities Act of 1933, as amended.


 


“Series” or “Series of Notes” means each series of debentures, notes or
other debt instruments of the Company created pursuant to Sections 2.01 and
2.02 hereof.


 


“Stated Maturity”
means, with respect to any installment of interest or principal on any series
of Indebtedness, the date on which the payment of interest or principal was
scheduled to be paid in the original documentation governing such Indebtedness,
and shall not include any contingent obligations to repay, redeem or repurchase
any such interest or principal prior to the date originally scheduled for the
payment thereof.


 


“Subsidiary”
means, with respect to any specified Person:


 


(1)           any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled, without regard to the
occurrence of any contingency, to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person; and


 


(2)           any
partnership (a) the sole general partner or the managing general partner of
which is such Person or an entity described in clause (1) and related to such
Person or (b) the only general partners of which are such Person or one or more
entities described in clause (1) and related to such Person, or any combination
thereof.


 


“TIA”
means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in
effect on the date of this Indenture; provided, however, that in
the event the Trust Indenture Act of 1938 is amended after such date, “TIA”
means, to the extent required by any such amendment, the Trust Indenture Act as
so amended.


 


“Trustee” means the person named
as the “Trustee” in the first paragraph of this instrument until a successor
Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean each person who is then a
Trustee hereunder, and if at any time there is more than one such person, “Trustee”
as used with respect to the Notes of any Series shall mean the Trustee with
respect to Notes of that Series.


 


“Voting Stock”
of any Person as of any date means the Capital Stock of such Person that is at
the time entitled to vote in the election of the Board of Directors of such
Person.


 


Section 1.02           Other
Definitions.


 


	
  

  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Authentication
  Order”

  	
   

  	
  2.03

  



 


5

















 


	
  

  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  
	
  “Mandatory
  Sinking Fund Payment”

  	
   

  	
  12.01

  
	
  “Optional
  Sinking Fund Payment”

  	
   

  	
  12.01

  
	
  “Paying
  Agent”

  	
   

  	
  2.04

  
	
  “Payment
  Default”

  	
   

  	
  6.01

  
	
  “Registrar”

  	
   

  	
  2.04

  



 


Section 1.03           Incorporation
by Reference of Trust Indenture Act.


 


Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by reference in and made a part of this
Indenture.


 


The following TIA terms used in this Indenture have
the following meanings:


 


“Commission” means the SEC;


 


“indenture
securities” means the Notes;


 


“indenture security
holder” means a Holder of a Note;


 


“indenture to be
qualified” means this Indenture;


 


“indenture trustee”
or “institutional trustee” means
the Trustee; and


 


“obligor”
on the indenture securities means the Company, and any successor obligor upon
the Notes.


 


All other terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined by
SEC rule under the TIA have the meanings so assigned to them.


 


Section 1.04           Rules of Construction.


 


Unless the context otherwise requires:


 


(1)           a
term has the meaning assigned to it;


 


(2)           an
accounting term not otherwise defined herein has the meaning assigned to it in
accordance with GAAP;


 


(3)           “or”
is not exclusive;


 


(4)           words
in the singular include the plural, and in the plural include the singular;


 


(5)           provisions
apply to successive events and transactions; and


 


6

















 


(6)           references
to sections of or rules under the Securities Act shall be deemed to include
substitute, replacement or successor sections or rules adopted by the SEC from
time to time.


 


ARTICLE 2.


THE NOTES


 


Section 2.01           Issuable in Series.    The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture is unlimited. The Notes may be
issued in one or more Series. All Notes of a Series shall be identical except
as may be set forth in a Board Resolution, a supplemental indenture or an
Officers’ Certificate detailing the adoption of the terms thereof pursuant to
the authority granted under a Board Resolution. In the case of Notes of a
Series to be issued from time to time, the Board Resolution, Officers’
Certificate or supplemental indenture detailing the adoption of the terms
thereof pursuant to authority granted under a Board Resolution may provide for
the method by which specified terms (such as interest rate, maturity date,
record date or date from which interest shall accrue) are to be determined. Notes
may differ between Series in respect of any matters, provided that all
Series of Notes shall be equally and ratably entitled to the benefits of the
Indenture.


 


Section 2.02           Establishment of Terms of Series of Notes.


 


At or prior to the issuance of any Notes within a Series,
the following shall be established (as to the Series generally, in the case of
Subsection 2.02(a) and either as to such Notes within the Series or as to the
Series generally in the case of Subsections 2.02(b) through 2.02(a)) by or
pursuant to a Board Resolution, and set forth or determined in the manner
provided in a Board Resolution, supplemental indenture or an Officers’
Certificate pursuant to authority granted under a Board Resolution:


 


(a)           the title of the Series (which shall
distinguish the Notes of that particular Series from the Notes of any other
Series);


 


(b)           the price or prices (expressed as a
percentage of the principal amount thereof) at which the Notes of the Series
will be issued;


 


(c)           any limit upon the aggregate
principal amount of the Notes of the Series which may be authenticated and
delivered under this Indenture (except for Notes authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Notes
of the Series pursuant to Section 2.07, 2.08, 2.11, 3.06 or 9.05;


 


(d)           the date or dates on which the
principal of the Notes of the Series is payable;


 


(e)           the rate or rates (which may be fixed
or variable) per annum or, if applicable, the method used to determine such
rate or rates (including, but not limited to, any commodity, commodity index,
stock exchange index or financial index) at which the Notes of the Series shall
bear interest, if any, the date or dates from which such interest, if any,
shall accrue, the date or dates on which such interest, if any, shall commence
and be payable and any regular record date for the interest payable on any
interest payment date;


 


(f)            the place or places where the
principal of and interest, if any, on the Notes of the Series shall be payable,
where the Notes of such Series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Notes of such Series and this Indenture may be served, and the method of
such payment, if by wire transfer, mail or other means;


 


7

















 


(g)           if applicable, the period or periods
within which, the price or prices at which and the terms and conditions upon
which the Notes of the Series may be redeemed, in whole or in part, at the
option of the Company;


 


(h)           the obligation, if any, of the
Company to redeem or purchase the Notes of the Series pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the terms and
conditions upon which Notes of the Series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;


 


(i)            the dates, if any, on which and the
price or prices at which the Notes of the Series will be repurchased by the
Company at the option of the Holders thereof and other detailed terms and
provisions of such repurchase obligations;


 


(j)            if other than denominations of
$1,000 and any integral multiple thereof, the denominations in which the Notes
of the Series shall be issuable;


 


(k)           the forms of the Notes of the Series
in bearer or fully registered form (and, if in fully registered form, whether
the Notes will be issuable as Global Notes);


 


(l)            if other than the principal amount
thereof, the portion of the principal amount of the Notes of the Series that
shall be payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.02;


 


(m)          the currency of denomination of the Notes
of the Series, which may be Dollars or any Foreign Currency, including, but not
limited to, the ECU, and if such currency of denomination is a composite
currency other than the ECU, the agency or organization, if any, responsible
for overseeing such composite currency;


 


(n)           the designation of the currency,
currencies or currency units in which payment of the principal of and interest,
if any, on the Notes of the Series will be made;


 


(o)           if payments of principal of or
interest, if any, on the Notes of the Series are to be made in one or more
currencies or currency units other than that or those in which such Notes are
denominated, the manner in which the exchange rate with respect to such
payments will be determined;


 


(p)           the manner in which the amounts of
payment of principal of or interest, if any, on the Notes of the Series will be
determined, if such amounts may be determined by reference to an index based on
a currency or currencies or by reference to a commodity, commodity index, stock
exchange index or financial index;


 


(q)           the provisions, if any, relating to
any security or guarantee provided for the Notes of the Series, and any
subordination in right of payment, if any, of the Notes of the Series;


 


(r)            any addition to or change in the
Events of Default which applies to any Notes of the Series and any change in
the right of the Trustee or the requisite Holders of such Notes to declare the
principal amount thereof due and payable pursuant to Section 6.02;


 


(s)           any addition to or change in the
covenants set forth in Articles 4 or 5 which applies to Notes of the Series;


 


8

















 


(t)            any other terms of the Notes of the
Series (which may modify or delete any provision of this Indenture insofar as
it applies to such Series); and


 


(u)           any depositories, interest rate calculation
agents, exchange rate calculation agents or other agents with respect to Notes
of such Series if other than those appointed herein.


 


All Notes of any one Series need not be issued at the
same time and may be issued from time to time, consistent with the terms of
this Indenture, if so provided by or pursuant to the Board Resolution,
supplemental indenture hereto or Officers’ Certificate referred to above, and
the authorized principal amount of any Series may not be increased to provide
for issuances of additional Notes of such Series, unless otherwise provided in
such Board Resolution, supplemental indenture or Officers’ Certificate.


 


Section 2.03           Execution and Authentication.


 


One Officer shall sign the Notes for the Company by
manual or facsimile signature. If an Officer whose signature is on a Note no
longer holds that office at the time such Note is authenticated, such Note
shall nevertheless be valid.


 


A Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive evidence
that the Note, as applicable, has been authenticated under this Indenture.


 


The Trustee shall, upon a written order of the Company
signed by one Officer (an “Authentication
Order”), authenticate Notes for original issue in accordance with
this Indenture.


 


The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Company.


 


Section 2.04           Registrar and Paying Agent.


 


The Company shall maintain an office or agency where
Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where
Notes may be presented for payment (“Paying
Agent”). The Registrar shall keep a register with respect to each
Series of the Notes and of their transfer and exchange. The Company may appoint
one or more co-registrars and one or more additional paying agents. The term “Registrar”
includes any co-registrar and the term “Paying Agent” includes any additional
paying agent. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.


 


The Company initially appoints the Trustee to act as
the Registrar and Paying Agent and to act as Custodian with respect to the
Global Notes.


 


Section 2.05           Paying Agent to Hold Money in Trust.


 


The Company shall require each Paying Agent other than
the Trustee to agree in writing that the Paying Agent will hold in trust, for
the benefit of Holders of any Series of Notes, or the Trustee, all money held
by the Paying Agent for the payment of principal or interest on the Series of Notes,
and shall


 


9

















 


notify the Trustee of any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it
to the Trustee. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee. Upon payment over to the Trustee, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent,
it shall segregate and hold in a separate trust fund for the benefit of Holders
of any Series of Notes all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee
shall serve as Paying Agent for the Notes.


 


Section 2.06           Holder Lists.


 


The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders of each Series of Notes and shall otherwise comply with
TIA Section 312(a). If the Trustee is not the Registrar, the Company shall
furnish to the Trustee, at least seven Business Days before each interest
payment date and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Holders of each Series of Notes and the Company shall
otherwise comply with TIA Section 312(a).


 


Section 2.07           Transfer and Exchange.


 


Where Notes of a Series are presented to the Registrar
or a co-registrar with a request to register a transfer or to exchange them for
an equal principal amount of Notes of the same Series, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the
Trustee shall authenticate Notes at the Registrar’s request. No service charge
shall be made for any registration of transfer or exchange (except as otherwise
expressly permitted herein), but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer tax or similar governmental
charge payable upon exchanges pursuant to Sections 2.11, 3.06 or 9.05).


 


Neither the Company nor the Registrar shall be
required (a) to issue, register the transfer of, or exchange Notes of any
Series for the period beginning at the opening of business fifteen days
immediately preceding the mailing of a notice of redemption of Notes of that
Series selected for redemption and ending at the close of business on the day
of such mailing, or (b) to register the transfer of or exchange Notes of any
Series selected, called or being called for redemption as a whole or the
portion being redeemed of any such Notes selected, called or being called for
redemption in part.


 


Section 2.08           Replacement Notes.


 


If any mutilated Note is surrendered to the Trustee or
the Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the
Trustee, upon receipt of an Authentication Order, shall authenticate a
replacement Note of the same Series if the Trustee’s requirements are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Company may
charge for its expenses in replacing a Note.


 


Every replacement Note of any Series is an additional
obligation of the Company and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes of that Series duly
issued hereunder.


 


10

















 


Section 2.09           Outstanding Notes.


 


The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.09 hereof, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.


 


If a Note is replaced pursuant to Section 2.07 hereof,
it ceases to be outstanding unless the Trustee receives proof satisfactory to
it that the replaced Note is held by a bona fide purchaser.


 


If the principal amount of any Note is considered paid
under Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue.


 


If the Paying Agent (other than the Company, a
Subsidiary or an Affiliate of any thereof) holds, on a redemption date or
maturity date, money sufficient to pay Notes payable on that date, then on and
after that date such Notes shall be deemed to be no longer outstanding and
shall cease to accrue interest.


 


Section 2.10           Treasury Notes.


 


In determining whether the Holders of the required
principal amount of Notes of a Series have concurred in any direction, waiver
or consent, Notes owned by the Company, or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company, shall be considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Notes of a Series that a
Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded.


 


Section 2.11           Temporary Notes.


 


Until certificates representing Notes are ready for
delivery, the Company may prepare and the Trustee, upon receipt of an
Authentication Order, shall authenticate temporary Notes. Temporary Notes shall
be substantially in the form of certificated Notes but may have variations that
the Company considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Notes in exchange
for temporary Notes.


 


Holders of temporary Notes shall be entitled to all of
the benefits of this Indenture.


 


Section 2.12           Cancellation.


 


The Company at any time may deliver Notes to the
Trustee for cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall return such canceled Notes to the Company. The Company may not issue new
Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.


 


Section 2.13           Defaulted Interest.


 


If the Company defaults in a payment of interest on a
Series of Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the


 


11

















 


Persons who are Holders of
the Series on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Note and the date of the proposed payment. The Company shall fix or cause
to be fixed each such special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or,
upon the written request of the Company, the Trustee in the name and at the
expense of the Company) shall mail or cause to be mailed to Holders a notice
that states the special record date, the related payment date and the amount of
such interest to be paid.


 


Section 2.14           Global Notes.


 


(a)           Terms of Notes. A Board
Resolution, a supplemental indenture hereto or an Officers’ Certificate shall
establish whether the Notes of a Series shall be issued in whole or in part in
the form of one or more Global Notes and the Depositary for such Global Note or
Notes.


 


(b)           Transfer and Exchange. Notwithstanding
any provisions to the contrary contained in Section 2.07 of the Indenture and
in addition thereto, any Global Note shall be exchangeable pursuant to Section
2.07 of the Indenture for Notes registered in the names of Holders other than
the Depositary for such Note or its nominee only if (i) such Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Note or if at any time such Depositary ceases to be a clearing
agency registered under the Exchange Act, and, in either case, the Company
fails to appoint a successor Depositary registered as a clearing agency under
the Exchange Act within 90 days of such event, (ii) the Company executes and
delivers to the Trustee an Officers’ Certificate to the effect that such Global
Note shall be so exchangeable or (iii) an Event of Default with respect to the Notes
represented by such Global Note shall have happened and be continuing. Any
Global Note that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Notes registered in such names as the Depositary shall direct
in writing in an aggregate principal amount equal to the principal amount of
the Global Note with like tenor and terms.


 


Except as provided in this Section 2.14(b), a Global Note
may not be transferred except as a whole by the Depositary with respect to such
Global Note to a nominee of such Depositary, by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such a successor Depositary.


 


(c)           Legend. Any Global Note issued
hereunder shall bear a legend in substantially the following form:


 


“This Note is a Global Note within the meaning of the
Indenture hereinafter referred to and is registered in the name of the Depositary
or a nominee of the Depositary. This Note is exchangeable for Notes registered
in the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Indenture, and may not be transferred
except as a whole by the Depositary to a nominee of the Depositary, by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such a successor Depositary.”


 


(d)           Acts of Holders. The Depositary,
as a Holder, may appoint agents and otherwise authorize participants to give or
take any request, demand, authorization, direction, notice, consent, waiver or
other action which a Holder is entitled to give or take under the Indenture.


 


12

















 


(e)           Payments. Notwithstanding the other
provisions of this Indenture, unless otherwise specified as contemplated by
Section 2.02, payment of the principal of and interest, if any, on any Global Note
shall be made to the Holder thereof.


 


(f)            Consents, Declaration and
Directions. Except as provided in Section 2.14(e), the Company, the Trustee
and any Agent shall treat a person as the Holder of such principal amount of
outstanding Notes of such Series represented by a Global Note as shall be
specified in a written statement of the Depositary with respect to such Global Note,
for purposes of obtaining any consents, declarations, waivers or directions
required to be given by the Holders pursuant to this Indenture.


 


Section 2.15           CUSIP Number.


 


The Company in issuing the Notes may use “CUSIP” numbers
(if then generally in use), and, if so, the Trustee shall use CUSIP numbers in
notices of redemption as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of a redemption and that reliance
may be placed only on the other identification numbers printed on the Notes,
and any such redemption shall not be affected by any defect in or the omission
of such numbers. The Company shall promptly notify the Trustee of any change in
the CUSIP numbers.


 


ARTICLE 3.

REDEMPTION AND PREPAYMENT


 


Section 3.01           Notice to Trustee.


 


The Company may, with respect to any Series of Notes,
reserve the right to redeem and pay the Series of Notes or may covenant to
redeem and pay the Series of Notes or any part thereof prior to the Stated
Maturity thereof at such time and on such terms as provided for in such Notes. If
a Series of Notes is redeemable and the Company wants or is obligated to redeem
prior to the Stated Maturity thereof all or part of the Series of Notes
pursuant to the terms of such Notes, it shall notify the Trustee of the
redemption date and the principal amount of Series of Notes to be redeemed. The
Company shall give the notice at least 30 days but not more than 60 days before
the redemption date (or such shorter notice as may be acceptable to the
Trustee).


 


Section 3.02           Selection of Notes to Be Redeemed.


 


If less than all of the Notes of a Series are to be
redeemed or purchased in an offer to purchase at any time, the Trustee shall
select the Notes of a Series to be redeemed or purchased among the Holders of
the Notes (a) in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, (b) if the Notes
are not so listed, on a pro rata basis,
by lot or in accordance with any other method the Trustee considers fair and
appropriate. In the event of partial redemption or purchase by lot, the
particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption date by
the Trustee from the outstanding Notes not previously called for redemption or
purchase. The Trustee may select for redemption or repurchase portions of the
principal of Notes of the Series that have denominations larger than $1,000.


 


The Trustee shall promptly notify the Company in
writing of the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to be redeemed. Notes
of a Series and portions of them selected shall be in amounts of $1,000 or
whole multiples of $1,000 or. With respect to Notes of any Series issuable in
other denominations pursuant to Section 2.02(j), the minimum principal
denomination for each Series and integral multiples thereof. Except as


 


13

















 


provided in the preceding
sentence, provisions of this Indenture that apply to Notes of a Series called
for redemption or repurchase also apply to portions of Notes of a Series called
for redemption or repurchase.


 


Section 3.03           Notice of Redemption.


 


Unless otherwise indicated for a particular Series by
Board Resolution, a supplemental indenture hereto or an Officers’ Certificate,
at least 30 days but not more than 60 days before a redemption date, the
Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.


 


The notice shall identify the Notes of the Series to
be redeemed and shall state:


 


(1)           the
redemption date;


 


(2)           the
redemption price;


 


(3)           the
name and address of the Paying Agent;


 


(4)           that
Notes of the Series called for redemption must be surrendered to the Paying
Agent to collect the redemption price;


 


(5)           that
interest on Notes of the Series called for redemption ceases to accrue on and
after the redemption date;


 


(6)           the
CUSIP number, if any; and


 


(7)           any
other information as may be required by the terms of the particular Series of
the Notes or the Notes of a Series being redeemed.


 


At the Company’s request, the Trustee shall give the
notice of redemption in the Company’s name and at its expense.


 


Section 3.04           Effect of Notice of Redemption.


 


Once notice of redemption is mailed in accordance with
Section 3.03 hereof, Notes called for redemption become irrevocably due and
payable on the redemption date at the redemption price. A notice of redemption
may not be conditional.


 


Section 3.05           Deposit of Redemption Price.


 


One Business Day prior to the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued interest on all Notes to
be redeemed on that date. The Trustee or the Paying Agent shall promptly return
to the Company any money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption price of, and
accrued interest on, all Notes to be redeemed.


 


If the Company complies with the provisions of the
preceding paragraph, on and after the redemption date, interest shall cease to
accrue on the Notes or the portions of Notes called for redemption. If a Note
is redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to
the Person in whose name such Note was registered at the close of business on
such record date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding


 


14

















 


paragraph, interest shall
be paid on the unpaid principal, from the redemption date until such principal
is paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.


 


Section 3.06           Notes Redeemed in Part.


 


Upon surrender of a Note that is redeemed in part, the
Company shall issue and, upon the Company’s written request, the Trustee shall
authenticate for the Holder, at the expense of the Company, a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.


 


No Notes of $1,000 or less can be redeemed in part.


 


ARTICLE 4.


COVENANTS


 


Section 4.01           Payment of Principal and Interest.


 


The Company covenants and agrees for the benefit of
the Holders of each Series of Notes that it will pay or cause to be paid the
principal of, premium, if any, and interest on the Notes on the dates and in
the manner provided in such Notes. Principal, premium, if any, and interest on
any Series of Notes will be considered paid on the date due if the Paying
Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00
a.m. Eastern Time on the due date money deposited by the Company in immediately
available funds and designated for and sufficient to pay all principal,
premium, if any, and interest then due.


 


Section 4.02           Maintenance of Office or Agency.


 


The Company covenants and agrees for the benefit of
the Holders of each Series of Notes that it will maintain in the Borough of
Manhattan, the City of New York, an office or agency (which may be an office of
the Trustee for such Notes or an affiliate of such Trustee, Registrar for such
Notes or co-registrar) where such Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Company
in respect of such Notes and this Indenture may be served. The Company shall
give prompt written notice to the Trustee for such Notes of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Administration Office of the Trustee.


 


The Company may also from time to time designate one
or more other offices or agencies where Holders of a Series of Notes may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided,
however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company shall
give prompt written notice to the Trustee for such Series of Notes of any such
designation or rescission and of any change in the location of any such other
office or agency.


 


With respect to each Series of Notes, the Company
hereby designates the Corporate Trust Office of the Trustee for such Notes as
one such office or agency of the Company in accordance with Section 2.03.


 


15

















 


Section 4.03           Reports.


 


(a)           Whether
or not the Company is required by the SEC, so long as any Series of Notes are
outstanding, the Company shall furnish to the Holders of such Notes, within the
time periods (including any extensions thereof) specified in the SEC’s rules
and regulations:


 


(1)           all quarterly and annual reports
that would be required to be filed with the Commission on Forms 10-Q and 10-K
if the Company were required to file reports; and


 


(2)           all
current reports that would be required to be filed with the SEC on Form 8-K if
the Company were required to file such reports.


 


In addition, whether or not required by the rules and
regulations of the SEC, the Company shall file a copy of all such information
and reports referred to in clauses (1) and (2) above with the SEC for public
availability within the time periods specified in the SEC’s rules and
regulations, unless the SEC will not accept such a filing, and make such
information available to securities analysts and prospective investors upon
request. The Company shall at all times comply with TIA Section 314(a). Delivery
of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers’ Certificates).


 


(b)           For so long as any Series of Notes
remain outstanding, if at any time they are not required to file with the
Commission the reports required by paragraphs (1) and (2) of this Section 4.03,
the Company and any guarantors of such Notes will furnish to the Holders of
such Notes and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.


 


Section 4.04           Compliance Certificate.


 


(a)           The Company and each guarantor of any
Series of Notes (to the extent that such guarantor is so required under the
TIA) shall deliver to the Trustee with respect to such Series, within 90 days
after the end of each fiscal year, an Officers’ Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in
the performance or observance of any of the terms, provisions and conditions of
this Indenture (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Company is taking or proposes to take with
respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a description of the event and what action the Company is taking
or proposes to take with respect thereto.


 


(b)           The Company shall, so long as any of Series
of Notes are outstanding, deliver to the Trustee with respect to such Series,
as soon as possible, but in no event later than five days after any Officer
becoming aware of any Default or Event of Default, an Officers’ Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.


 


16

















 


Section 4.05           Taxes.


 


The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.


 


Section 4.06           Stay, Extension and Usury Laws.


 


The Company covenants (to the extent that it may lawfully
do so) that it shall not, and each guarantor of such Notes shall not, at any
time, insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance
of this Indenture; and the Company and each of such guarantors (to the extent
that it may lawfully do so), as applicable, hereby expressly waives all benefit
or advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee for such Notes, but shall suffer and permit the execution of every
such power as though no such law has been enacted.


 


Section 4.07           Corporate Existence.


 


Subject to Articles 5 and 10 hereof, the Company shall
do or cause to be done all things necessary to preserve and keep in full force
and effect (i) its corporate existence, and the corporate, partnership or other
existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company, any such Subsidiary and (ii) the rights (charter and statutory),
licenses and franchises of the Company and its Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders of the Notes.


 


ARTICLE 5.


SUCCESSORS


 


Section 5.01           Merger, Consolidation or Sale of Assets.


 


The Company shall not, directly or indirectly: (1)
consolidate or merge with or into another person, whether or not the Company is
the surviving corporation, or (2) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the Company
and its Subsidiaries, taken as a whole, in one or more related transactions, to
another Person unless:


 


(i) either: (a) the Company is the surviving
corporation; or (b) the Person formed by or surviving any such consolidation or
merger, if other than the Company, or to which such sale, assignment, transfer,
conveyance or other disposition shall have been made is a corporation organized
or existing under the laws of the United States, any state of the United States
or the District of Columbia;


 


(ii) the Person formed by or surviving any such
consolidation or merger, if other than the Company, or the Person to which such
sale, assignment, transfer, conveyance or other disposition shall have been
made assumes all the obligations of the Company under the Notes and this
Indenture pursuant to agreements reasonably satisfactory to the Trustee;


 


17

















 


(iii) immediately after
such transaction no Default or Event of Default exists.


 


The Company may not,
directly or indirectly, lease all or substantially all of the properties or
assets, in one or more related transactions, to any other Person. The provisions
of this Section 5.01 shall not apply to (1) a merger of the Company with an
Affiliate solely for the purpose of reincorporating the Company in another
jurisdiction or forming a direct holding company of the Company or (2) to a
sale, assignment, transfer, conveyance or other disposition of assets between
or among the Company and its Subsidiaries.


 


Section 5.02           Successor Corporation Substituted.


 


Upon any consolidation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the assets of the Company in accordance with Section 5.01
hereof, the successor person formed by such consolidation or into or with which
the Company is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be substituted
for (so that from and after the date of such consolidation, merger, sale,
lease, conveyance or other disposition, the provisions of this Indenture
referring to the “Company” shall refer instead to the successor corporation and
not to the Company), and may exercise every right and power of the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein; provided,
however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of and interest on any Series of Notes except
in the case of a sale of all of the Company’s assets that meets the
requirements of Section 5.01 hereof.


 


ARTICLE 6.


DEFAULTS AND
REMEDIES


 


Section 6.01           Events of Default.


 


“Event of Default,” wherever used herein with respect
to Notes of any Series, means any one of the following events, unless in the
establishing Board Resolution, supplemental indenture or Officers’ Certificate,
it is provided that such Series shall not have the benefit of said Event of
Default:


 


(1)           default
in the payment of any interest on any Note of that Series when it becomes due
and payable, and continuance of such default for a period of 30 days; or


 


(2)           default
in payment when due of the principal of, or premium, if any, on any Note of
that Series; or


 


(3)           default
in the deposit of any sinking fund payment, when and as due in respect of any Note
of that Series; or


 


(4)           default
in the performance or breach of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty that has been included in this
Indenture solely for the benefit of Series of Notes other than that Series),
which default continues uncured for a period of 30 days after written notice
given by the Trustees for such Notes or Holders of such Notes; or


 


(5)           default
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company or any of its Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Subsidiaries) whether such Indebtedness
or guarantee now exists, or is created after the date of the indenture, if that
default:


 


18

















 


(a)           is
caused by a failure to pay principal of, or interest or premium, if any, on
such Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a “Payment Default”); or


 


(b)           results
in the acceleration of such Indebtedness prior to its express maturity, and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$100.0 million or more;


 


(6)           one
or more judgments for the payment of money in an aggregate amount in excess of
$100.0 million (excluding therefrom any amount reasonably expected to be
covered by insurance) shall be rendered against the Company any Subsidiary or
any combination thereof and the same shall not have been paid, discharged or
stayed for a period of 60 days after such judgment became final and
nonappealable;


 


(7)           the
Company pursuant to or within the meaning of any Bankruptcy Law:


 


(a)           commences
a voluntary case,


 


(b)           consents
to the entry of an order for relief against it in an involuntary case,


 


(c)           consents
to the appointment of a Custodian of it or for all or substantially all of its
property,


 


(d)           makes
a general assignment for the benefit of its creditors, or


 


(e)           generally
is unable to pay its debts as the same become due; or


 


(8)           a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:


 


(a)           is
for relief against the Company in an involuntary case,


 


(b)           appoints
a Custodian of the Company or for all or substantially all of its property, or


 


(c)           orders
the liquidation of the Company, and the order or decree remains unstayed and in
effect for 60 days; or


 


(9)           any
other Event of Default provided with respect to Notes of that Series, which is
specified in a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate, in accordance with Section 2.02.


 


Section 6.02           Acceleration.


 


If an Event of Default with respect to Notes of any
Series at the time outstanding occurs and is continuing (other than an Event of
Default referred to in Section 6.1(7) or (8)) then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
outstanding Notes of that Series may declare the principal amount (or, if any
Notes of that Series are Discount Notes, such portion of the principal amount
as may be specified in the terms of such Notes) of and accrued and unpaid interest,
if any, on all of the Notes of that Series to be due and payable immediately,
by a notice in writing to the


 


19

















 


Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) and accrued and unpaid interest, if any, shall
become immediately due and payable. If an Event of Default specified in Section
6.1(7) or (8) shall occur, the principal amount (or specified amount) of and
accrued and unpaid interest, if any, on all outstanding Notes shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.


 


At any time after such a declaration of acceleration
with respect to any Series has been made, the Holders of a majority in
principal amount of the outstanding Notes of that Series, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal, interest
or premium that has become due solely because of the acceleration) have been
cured or waived.


 


No such rescission shall affect any subsequent Default
or impair any right consequent thereon.


 


Section 6.03           Other Remedies.


 


If an Event of Default with respect to Notes of any
Series at the time outstanding occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any, and
interest on such Notes or to enforce the performance of any provision of such
Notes or this Indenture.


 


The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder of a Note in exercising any
right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.


 


Section 6.04           Waiver of Past Defaults.


 


The Holders of a majority in aggregate principal
amount of the Notes of any Series then outstanding by notice to the Trustee may
on behalf of the Holders of all of the Notes waive any existing Default or
Event of Default and its consequences under this Indenture except a continuing
Default or Event of Default in the payment of interest on, or the principal of,
the Notes (including in connection with an offer to purchase); provided, however,
that the Holders of a majority in aggregate principal amount of the then
outstanding Notes of any Series may rescind an acceleration of such Notes and
its consequences, including any related payment default that resulted from such
acceleration. Upon any such waiver, such Default or Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.


 


Section 6.05           Control by Majority.


 


Holders of a majority in principal amount of the then
outstanding Notes of any Series may direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of other Holders of
Notes or that may involve the Trustee in personal liability.


 


20

















 


Section 6.06           Limitation on Suits.


 


A Holder of any Series of Notes may pursue a remedy
with respect to this Indenture or the Notes only if:


 


(a)           the Holder of a Note gives to the
Trustee written notice of a continuing Event of Default;


 


(b)           the Holders of at least 25% in
principal amount of the then outstanding Notes of such Series make a written
request to the Trustee to pursue the remedy;


 


(c)           such Holder of a Note or Holders of
Notes offer and, if requested, provide to the Trustee indemnity satisfactory to
the Trustee against any loss, liability or expense;


 


(d)           the Trustee does not comply with the
request within 60 days after receipt of the request and the offer and, if
requested, the provision of indemnity; and


 


(e)           during such 60-day period the Holders
of a majority in principal amount of the then outstanding Notes do not give the
Trustee a direction inconsistent with the request.


 


A Holder of any Series of Notes may not use this
Indenture to prejudice the rights of another Holder of such Series of Notes or
to obtain a preference or priority over another Holder of Notes of such Series.


 


Section 6.07           Rights of Holders of Notes to Receive Payment.


 


Notwithstanding any other provision of this Indenture,
the right of any Holder of a Note to receive payment of principal, premium, if
any, and interest on the Note, on or after the respective due dates expressed in
the Note (including in connection with an offer to purchase), or to bring suit
for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.


 


Section 6.08           Collection Suit by Trustee.


 


If an Event of Default specified in Section 6.01(a) or
(b) occurs and is continuing, the Trustee is authorized to recover judgment in
its own name and as Trustee of an express trust against the Company for the
whole amount of principal of, premium, if any, and interest remaining unpaid on
the Notes and interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.


 


Section 6.09           Trustee May File Proofs of Claim.


 


The Trustee for each Series of Notes is authorized to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders of the Notes allowed in any
judicial proceedings relative to the Company (or any other obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it
for the reasonable compensation,


 


21

















 


expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof. To the extent that the payment of any
such compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 7.07
hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.


 


Section 6.10           Priorities.


 


If the Trustee collects any money pursuant to this
Article, it shall pay out the money in the following order:


 


First:  to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;


 


Second:  to Holders of the Notes for amounts due and
unpaid on the Notes for principal, premium, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any and interest, respectively;
and


 


Third:  to the Company.


 


The Trustee may fix a record date and payment date for
any payment to Holders of Notes pursuant to this Section 6.10.


 


Section 6.11           Undertaking for Costs.


 


In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys’ fees and expenses, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a
suit by Holders of more than 10% in principal amount of the then outstanding
Notes of any Series.


 


ARTICLE 7.


TRUSTEE


 


Section 7.01           Duties of Trustee.


 


(a)           If an Event of Default has occurred
and is continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
its exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.


 


22

















 


(b)           Except during the continuance of an
Event of Default:


 


(i)            the
duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and


 


(ii)           in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture, but in the case of any such certificates
of opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture
(but need not confirm or investigate the accuracy of mathematical calculations
or other facts stated therein).


 


(c)           The Trustee may not be relieved from
liabilities for its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:


 


(i)            this
paragraph does not limit the effect of paragraph (b) of this Section;


 


(ii)           the
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and


 


(iii)          the
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to
Section 6.05 hereof.


 


(d)           Whether or not therein expressly so
provided, every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c), (e) and (f) of this Section and
Section 7.02.


 


(e)           No provision of this Indenture shall
require the Trustee to expend or risk its own funds or incur any liability. The
Trustee shall be under no obligation to exercise any of its rights and powers
under this Indenture at the request of any Holders, unless such Holder shall
have offered to the Trustee security and indemnity satisfactory to it against
any loss, liability or expense.


 


(f)            The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.


 


Section 7.02           Rights of Trustee.


 


(a)           The Trustee may conclusively rely
upon any document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.


 


(b)           Before the Trustee acts or refrains
from acting, it may require an Officers’ Certificate or an Opinion of Counsel
or both. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officers’ Certificate or Opinion of
Counsel. The Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and


 


23

















 


complete authorization and protection
from liability in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.


 


(c)           The Trustee may act through its
attorneys and agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.


 


(d)           The Trustee shall not be liable for
any action it takes or omits to take in good faith that it believes to be
authorized or within the rights or powers conferred upon it by this Indenture.


 


(e)           Unless otherwise specifically
provided in this Indenture, any demand, request, direction or notice from the
Company shall be sufficient if signed by an Officer of the Company issuing such
demand, request or notice.


 


(f)            The Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders unless such Holders
shall have offered to the Trustee reasonable security or indemnity satisfactory
to it against the costs, expenses and liabilities that might be incurred by it
in compliance with such request or direction.


 


(g)           Whenever in the administration of
this Indenture, the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, conclusively rely upon an Officers’
Certificate.


 


(h)           The Trustee shall not be deemed to
have notice of any Default or Event of Default unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a Default or Event of Default is received by the Trustee
at the Corporate Trust Office of the Trustee, and such notice references the
Notes and this Indenture.


 


(i)            The rights, privileges, protections,
immunities and benefits given to the Trustee, including, without limitation,
its right to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent, custodian and
other Person employed to act hereunder.


 


(j)            The Trustee may request that the
Company deliver an Officers’ Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers’ Certificate may be signed by any
person authorized to sign an Officers’ Certificate, including any person as so
authorized in any such certificate previously delivered and not superseded.


 


Section 7.03           Individual Rights of Trustee.


 


The Trustee in its individual or any other capacity
may become the owner or pledgee of Notes and may otherwise deal with the
Company or any Affiliate of the Company with the same rights it would have if
it were not Trustee. However, in the event the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as Trustee or resign. Any Agent may exercise the same
rights, with the same duties, as the Trustee under this Section 7.03. The
Trustee is also subject to Sections 7.10 and 7.11 hereof.


 


24

















 


Section 7.04           Trustee’s Disclaimer.


 


The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes,
it shall not be accountable for the Company’s use of the proceeds from the
Notes or any money paid to the Company or upon the Company’s direction under
any provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.


 


Section 7.05           Notice of Defaults.


 


If a Default or Event of Default occurs and is
continuing and if it is actually known to a Responsible Officer of the Trustee,
the Trustee shall mail to Holders of Notes a notice of the Default or Event of
Default within 90 days after it occurs. Except in the case of a Default or
Event of Default relating to the payment of principal of or interest on any
Note, the Trustee may withhold the notice from Holders of the Notes if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.


 


Section 7.06           Reports by Trustee to Holders of the Notes.


 


Within 60 days after each August 1 beginning with the
August 1 following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if
no event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA Section 313(c).


 


A copy of each report at the time of its mailing to
the Holders of Notes shall be mailed to the Company and filed with the SEC and
each stock exchange on which the Notes are listed in accordance with TIA
Section 313(d). The Company shall promptly notify the Trustee when the Notes
are listed on any stock exchange or delisted therefrom.


 


Section 7.07           Compensation and Indemnity.


 


The Company shall pay to the Trustee from time to time
such reasonable compensation as agreed upon in writing for its acceptance of
this Indenture and services hereunder. The Trustee’s compensation shall not be
limited by any law on compensation of a Trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel.


 


The Company shall indemnify the Trustee against any
and all losses, liabilities, claims, damages or expenses (including taxes other
than taxes based upon the income of the Trustee) incurred by it arising out of
or in connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company (including this Section 7.07) and defending itself against any
claim (whether asserted by the Company or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers
or duties hereunder, except to the extent any such loss, liability or expense may
be attributable to its negligence or willful misconduct. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity. Failure
by the Trustee to so notify the Company shall not relieve the Company of its


 


25

















 


obligations hereunder. The
Company shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.


 


The obligations of the Company under this Section 7.07
shall survive the satisfaction and discharge of this Indenture.


 


To secure the Company’s payment obligations in this
Section, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.


 


When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(g) or (h) hereof occurs,
the expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.


 


The Trustee shall comply with the provisions of TIA
Section 313(b)(2) to the extent applicable.


 


Section 7.08           Replacement of Trustee.


 


A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the
successor Trustee’s acceptance of appointment as provided in this Section.


 


The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of Notes of a majority in principal amount of the then outstanding
Notes may remove the Trustee by so notifying the Trustee and the Company in
writing. The Company may remove the Trustee if:


 


(a)           the Trustee fails to comply with
Section 7.10 hereof;


 


(b)           the Trustee is adjudged a bankrupt or
an insolvent or an order for relief is entered with respect to the Trustee
under any Bankruptcy Law;


 


(c)           a custodian or public officer takes
charge of the Trustee or its property; or


 


(d)           the Trustee becomes incapable of
acting.


 


If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall promptly
appoint a successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.


 


If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company, or the Holders of Notes of at least 10% in principal amount of the
then outstanding Notes may petition at the expense of the Company any court of
competent jurisdiction for the appointment of a successor Trustee.


 


26

















 


If the Trustee, after written request by any Holder of
a Note who has been a Holder of a Note for at least six months, fails to comply
with Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.


 


A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its succession
to Holders of the Notes. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee
(including its agents and/or counsel) hereunder have been paid and subject to
the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Company’s obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee.


 


Section 7.09           Successor Trustee by Merger, Etc.


 


If the Trustee consolidates, merges or converts into,
or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act shall be
the successor Trustee.


 


Section 7.10           Eligibility; Disqualification.


 


There shall at all times be a Trustee hereunder that
is a corporation organized and doing business under the laws of the United
States of America or of any state thereof that is authorized under such laws to
exercise corporate Trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of
at least $100 million as set forth in its most recent published annual report
of condition.


 


This Indenture shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee
is subject to TIA Section 310(b).


 


Section 7.11           Preferential Collection of Claims Against Company.


 


The Trustee is subject to TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b). A Trustee who
has resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated therein.


 


Section 7.12           Trustee’s Application for Instructions from the
Company.


 


Any application by the Trustee for written
instructions from the Company may, at the option of the Trustee, set forth in
writing any action proposed to be taken or omitted by the Trustee under this
Indenture and the date on and/or after which such action shall be taken or such
omission shall be effective. The Trustee shall not be liable for any action
taken by, or omission of, the Trustee in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than three Business Days after the date any officer of the
Company actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to the taking of such
action (or the effective date in the case of an omission), the Trustee shall
have received written instructions in response to such application specifying
the action to be taken or omitted.


 


27

















 


ARTICLE 8.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.01           Option to Effect Legal Defeasance or Covenant
Defeasance.


 


The Company may, at the option of its Board of
Directors evidenced by a resolution set forth in an Officers’ Certificate, at
any time, elect to have either Section 8.02 or 8.03 hereof be applied to all
outstanding Notes upon compliance with the conditions set forth below in this
Article 8.


 


Section 8.02           Legal Defeasance and Discharge.


 


Upon the Company’s exercise under Section 8.01 hereof
of the option applicable to this Section 8.02, the Company shall, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed
to have been discharged from its obligations with respect to all outstanding
Notes of Such Series (including the related guarantees, if any) on the date the
conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose,
Legal Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Notes of such
Series (including the related guarantees, if any), which shall thereafter be
deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all of their other obligations under such Notes, such guarantees, if
any and this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder:  (a) the rights of
Holders of outstanding Notes to receive solely from the trust fund described in
Section 8.04 hereof, and as more fully set forth in such Section, payments in
respect of the principal of, interest on, if any, on such Notes when such
payments are due, (b) the Company’s obligations with respect to the Notes under
Article 2 and Section 4.02 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company’s obligations in connection
therewith and (d) this Article 8. Subject to compliance with this Article 8,
the Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.


 


Section 8.03           Covenant Defeasance.


 


Upon the Company’s exercise under Section 8.01 hereof
of the option applicable to this Section 8.03, the Company and each of the
guarantors, if any, will subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, be released from their obligations under the
covenants contained in Section 4.03 with respect to the outstanding Notes of
the applicable Series on and after the date the conditions set forth in Section
8.04 are satisfied (hereinafter, “Covenant
Defeasance”), and the Notes shall thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed “outstanding” for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes). For this purpose, Covenant Defeasance means that,
with respect to the outstanding Notes of such Series, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Company’s exercise under Section 8.01 hereof of the option
applicable to this Section 8.03 hereof, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, Sections 6.01(d) through 6.01(f)
hereof shall not constitute Events of Default.


 


28

















 


Section 8.04           Conditions to Legal or Covenant Defeasance.


 


The following shall be the conditions to the
application of either Section 8.02 or 8.03 hereof to the outstanding Notes:


 


In order to exercise either Legal Defeasance or
Covenant Defeasance:


 


(a)           the Company must irrevocably deposit
with the Trustee, in trust, for the benefit of the Holders, cash in United
States dollars, non-callable Government Securities, or a combination of cash in
U.S. dollars and non-callable Government Securities in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, interest and premium, if any, on
the outstanding Notes of such Series on the stated maturity or on the
applicable redemption date, as the case may be, and the Company must specify
whether the Notes are being defeased to maturity or to a particular redemption
date;


 


(b)           in the case of an election under
Section 8.02 hereof, the Company shall have delivered to the Trustee an Opinion
of Counsel reasonably acceptable to the Trustee confirming that (A) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling or (B) since the date of this Indenture, there has been a change in
the applicable U.S. federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the Holders of
the outstanding Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Legal Defeasance and will be subject to
U.S. federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not occurred;


 


(c)           in the case of an election under
Section 8.03 hereof, the Company shall have delivered to the Trustee an Opinion
of Counsel reasonably acceptable to the Trustee confirming that the Holders of
the outstanding Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Covenant Defeasance and will be subject
to U.S. federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had not
occurred;


 


(d)           no Default or Event of Default shall
have occurred and be continuing on the date of such deposit, other than a
Default or Event of Default resulting from the incurrence of Indebtedness all
or a portion of the proceeds of which will be used to defease the Notes
pursuant to this Article 8 concurrently with such incurrence, or insofar as
Sections 6.01(h) or 6.01(i) hereof is concerned, at any time in the period ending
on the 91st day after the date of deposit;


 


(e)           such Legal Defeasance or Covenant
Defeasance shall not result in a breach or violation of, or constitute a
default under, any material agreement or instrument, other than this Indenture,
to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;


 


(f)            the Company shall have delivered to
the Trustee an Officers’ Certificate stating that the deposit was not made by
the Company with the intent of preferring the Holders of the Notes over the
other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and


 


(g)           the Company shall have delivered to
the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating
that all conditions precedent relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.


 


29

















 


Section 8.05           Deposited Money and Government Securities to Be Held
in Trust; Other Miscellaneous Provisions.


 


Subject to Section 8.06 hereof, all money and
non-callable Government Securities (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of
this Section 8.05, the “Trustee”)
pursuant to Section 8.04 hereof in respect of the outstanding Notes of any
Series shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Notes and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Holders of such Notes of all sums
due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.


 


The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or
non-callable Government Securities deposited pursuant to Section 8.04 hereof or
the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
outstanding Notes of the applicable Series.


 


Anything in this Article 8 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon the request of the Company any money or non-callable Government
Securities held by it as provided in Section 8.04 hereof which, in the opinion
of a nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.04(a) hereof), are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.


 


Section 8.06           Repayment to Company.


 


Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal of,
premium, if any, or interest on any Series of Notes and remaining unclaimed for
two years after such principal, and premium, if any, or interest has become due
and payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
reasonable expense of the Company cause to be published once, in the New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining shall be repaid to the Company.


 


Section 8.07           Reinstatement.


 


If the Trustee or Paying Agent is unable to apply any
United States dollars or non-callable Government Securities in accordance with
Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company’s and any applicable
guarantors’ obligations under this Indenture and the applicable Notes and the
guarantees shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of,
premium, if any, or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights


 


30

















 


of the Holders of such
Notes to receive such payment from the money held by the Trustee or Paying
Agent.


 


ARTICLE 9.


AMENDMENT,
SUPPLEMENT AND WAIVER


 


Section 9.01           Without Consent of Holders of Notes.


 


Notwithstanding Section 9.02 of this Indenture, the Company
and the Trustee may amend or supplement this Indenture or the Notes of one or
more Series without the consent of any Holder of a Note:


 


(1)           to
cure any ambiguity, defect or inconsistency;


 


(2)           to
provide for uncertificated Notes in addition to or in place of certificated
Notes;


 


(3)           to
provide for the assumption of the Company’s obligations to the Holders of the Notes
by a successor to the Company pursuant to Article 5 hereof;


 


(4)           to
make any change that would provide any additional rights or benefits to the
Holders of Notes or that does not adversely affect the legal rights hereunder
of any Holder of a Note;


 


(5)           to
comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA


 


(6)           to
provide for the issuance of and establish the form and terms and conditions of Notes
of any Series as permitted by this Indenture; or


 


(7)           to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Notes of one or more Series and to add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee.


 


Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the Trustee of the
documents described in Section 7.02 hereof, the Trustee will join with the
Company in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee will
not be obligated to enter into such amended or supplemental indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.


 


Section 9.02           With Consent of Holders of Notes.


 


The Company and the Trustee may enter into a
supplemental indenture with the written consent of the Holders of at least a
majority in principal amount of the outstanding Notes of each Series affected
by such supplemental indenture (including consents obtained in connection with
a tender offer or exchange offer for the Notes of such Series), for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the Holders of Notes of each such Series. Except as
otherwise provided herein, the Holders of at least a majority in principal
amount of the outstanding Notes of each Series by notice to the Trustee
(including consents obtained in connection with a tender offer or exchange


 


31

















 


offer for the Notes of
such Series) may waive compliance by the Company with any provision of this
Indenture or the Notes with respect to such Series.


 


It shall not be necessary for the consent of the
Holders of Notes under this Section 9.02 to approve the particular form of any
proposed supplemental indenture or waiver, but it shall be sufficient if such
consent approves the substance thereof. Upon the request of the Company
accompanied by a resolution of its Board of Directors authorizing the execution
of any such amended or supplemental indenture, and upon the filing with the
Trustee of evidence satisfactory to the Trustee of the consent of the Holders
of Notes as aforesaid, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee will join with the Company in the
execution of such amended or supplemental indenture unless such amended or
supplemental indenture directly affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but will not be obligated to, enter into such amended or
supplemental Indenture.


 


After a supplemental indenture or waiver under this
section becomes effective, the Company shall mail to the Holders of Notes
affected thereby a notice briefly describing the supplemental indenture or
waiver. Any failure by the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture or waiver. However, without the consent of each Holder
affected, an amendment or waiver under this Section 9.02 may not, with respect
to any Notes held by a non-consenting Holder:


 


(a)           reduce the principal amount of Notes
whose Holders must consent to an amendment or waiver;


 


(b)           reduce the principal of or change the
fixed maturity of any Note or alter or waive any of the provisions with respect
to the redemption of the Notes;


 


(c)           reduce the rate of or change the time
for payment of interest, including default interest, on any Note;


 


(d)           waive a Default or Event of Default
in the payment of principal of or premium, if any, or interest, if any, on the
Notes, except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the then outstanding Notes
and a waiver of the payment default that resulted from such acceleration:


 


(e)           make any Note payable in money other
than that stated in the Notes;


 


(f)            make any change in the provisions of
this Indenture relating to waivers of past Defaults or the rights of Holders of
the Notes to receive payments of principal of or premium, interest, if any, on
the Notes; or


 


(g)           make any change in the foregoing
amendment and waiver provisions.


 


Section 9.03           Compliance with Trust Indenture Act.


 


Every amendment to this Indenture or the Notes of one
or more Series shall be set forth in a supplemental indenture hereto that
complies with the TIA as then in effect.


 


32

















 


Section 9.04           Revocation and Effect of Consents.


 


Until an amendment or waiver becomes effective, consent
to it by a Holder of a Note is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt
as the consenting Holder’s Note, even if notation of the consent is not made on
any Note. However, any such Holder or subsequent Holder may revoke the consent
as to his Note or portion of a Note if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. An
amendment or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.


 


Section 9.05           Notation on or Exchange of Notes.


 


The Trustee may place an appropriate notation about an
amendment or waiver on any Note of any Series thereafter authenticated. The
Company in exchange for Notes of that Series may issue and the Trustee shall
authenticate upon request new Notes of that Series that reflect the amendment
or waiver.


 


Section 9.06           Trustee Protected.


 


In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 7.01) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee shall sign all supplemental indentures, except that the Trustee need
not sign any supplemental indenture that adversely affects its rights.


 


ARTICLE 10.


SATISFACTION AND
DISCHARGE


 


Section 10.01         Satisfaction and Discharge.


 


This Indenture will be discharged and will cease to be
of further effect as to a Series of Notes issued hereunder, when:


 


(1)           either:


 


(a)           all
such Notes that have been authenticated (except lost, stolen or destroyed Notes
that have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company) have
been delivered to the Trustee for cancellation; or


 


(b)           all
such Notes that have not been delivered to the Trustee for cancellation have
become due and payable by reason of the mailing of a notice of redemption or
otherwise or will become due and payable within one year and the Company has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders of such Notes, cash in U.S.
dollars, non-callable Government Securities, or a combination of cash in U.S.
dollars and non-callable Government Securities, in such amounts as will be
sufficient without consideration of any reinvestment of interest, to pay and
discharge the entire indebtedness on the Notes not delivered to the Trustee for
cancellation for principal, premium, if any, and accrued interest to the date
of maturity or redemption;


 


33

















 


(2)           no
Default or Event of Default has occurred and is continuing on the date of such
deposit or will occur as a result of such deposit and such deposit will not
result in a breach or violation of, or constitute a default under, any other
instrument to which the Company or any guarantor, as applicable, is a party or
by which the Company or any guarantor, as applicable, is bound;


 


(3)           the
Company or any guarantor of such Notes has paid or caused to be paid all sums
payable by it under this Indenture; and


 


(4)           the
Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at
maturity or the redemption date, as the case may be.


 


In addition, the Company must deliver
an Officers’ Certificate and an Opinion of Counsel to the Trustee stating that
all conditions precedent to satisfaction and discharge have been satisfied.


 


Section 10.02         Application of Trust Money.


 


Subject to the provisions of Section 8.06 hereof, all
money deposited with a Trustee pursuant to Section 10.1 hereof shall be held in
trust and applied by it, in accordance with the provisions of the Notes with
respect to which such deposit was made and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as such Trustee may determine, to the persons entitled
thereto, of the principal (and premium, if any) and interest for whose payment
such money has been deposited with such Trustee; but such money need not be
segregated from other funds except to the extent required by law.


 


If such Trustee or Paying
Agent is unable to apply any money or Government Securities in accordance with
Section 10.01 hereof by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the Company’s and any applicable
guarantor’s obligations under this Indenture and the applicable Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section
10.01 hereof; provided that if the Company has made any payment of
principal of, premium, if any, or interest on, any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or
Government Securities held by the Trustee or Paying Agent.


 


ARTICLE 11.


MISCELLANEOUS


 


Section 11.01         Trust Indenture Act Controls.


 


If any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.


 


Section 11.02         Notices.


 


Any notice or communication by the Company or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the
others’ address.


 


If to the Company:


 


34

















 


 


Ball Corporation

10 Longs Peak Drive

Broomfield, Colorado 80021-2510

Telecopier No.: (303) 460-2691

Attention: Treasurer


 


If to the Trustee:


 


The Bank of New York Trust Company, N.A.

700 S. Flower Street, Suite 500

Los Angeles, CA 90017

Telecopier No.:  (213) 630-6298

Attention:  Corporate Trust
Administration


 


The Company or the Trustee, by notice to the others
may designate additional or different addresses for subsequent notices or
communications.


 


All notices and communications (other than those sent
to Holders) shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery.


 


Any notice or communication to a Holder shall be
mailed by first class mail postage prepaid, certified or registered mail,
return receipt requested, or by overnight air courier guaranteeing next day
delivery to its address shown on the register kept by the Registrar. Any notice
or communication shall also be so mailed to any Person described in TIA Section
313(c), to the extent required by the TIA. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.


 


If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given, whether or not the
addressee receives it.


 


If the Company mails a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent at the same time.


 


Section 11.03         Communication by Holders of Notes with Other Holders
of Notes.


 


Holders of any Series may communicate pursuant to TIA
Section 312(b) with other Holders of the Series or any other Series with respect
to their rights under this Indenture or the Notes of that Series or all Series.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).


 


Section 11.04         Certificate and Opinion as to Conditions Precedent.


 


Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company shall furnish to
the Trustee:


 


(a)           an Officers’ Certificate stating
that, in the opinion of the signers, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been satisfied; and


 


35

















 


(b)           an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent and covenants
have been complied with.


 


Section 11.05         Statements Required in Certificate.


 


Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the
provisions of TIA Section 314(e) and shall include:


 


(a)           a statement that the Person making
such certificate or opinion has read such covenant or condition;


 


(b)           a brief statement as to the nature
and scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;


 


(c)           a statement that, in the opinion of
such Person, he or she has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been satisfied; and


 


(d)           a statement as to whether or not, in
the opinion of such Person, such condition or covenant has been satisfied.


 


Section 11.06         Rules by Trustee and Agents.


 


The Trustee may make reasonable rules for action by or
at a meeting of Holders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.


 


Section 11.07         Calculation of Foreign Currency Amounts.


 


The calculation of the U.S. dollar equivalent amount
for any amount denominated in a foreign currency shall be the noon buying rate
in the City of New York as certified by the Federal Reserve Bank of New York on
the date on which such determination is required to be made or, if such day is
not a day on which such rate is published, the rate most recently published
prior to such day.


 


Section 11.08         No Personal Liability of Directors, Officers,
Employees and Stockholders.


 


No past, present or future director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any liability
for any obligations of the Company under the Notes, this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes. The waiver may not be effective to waive liabilities under the
federal securities laws.


 


Section 11.09         Governing Law.


 


THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


36

















 


Section 11.10         No Adverse Interpretation of Other Agreements.


 


This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.


 


Section 11.11         Successors.


 


All agreements of the Company in this Indenture and
the Notes shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.


 


Section 11.12         Severability.


 


In case any provision in this Indenture or in the
Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.


 


Section 11.13         Counterpart Originals.


 


The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.


 


Section 11.14         Table of Contents, Headings, Etc.


 


The Table of Contents, Cross-Reference Table and
Headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part of this Indenture
and shall in no way modify or restrict any of the terms or provisions hereof.


 


ARTICLE 12.


SINKING FUNDS


 


Section 12.01         Applicability of Article.


 


The provisions of this Article shall be applicable to
any sinking fund for the retirement of the Notes of a Series, except as
otherwise permitted or required by any form of Notes of such Series issued
pursuant to this Indenture.


 


The minimum amount of any sinking fund payment
provided for by the terms of the Notes of any Series is herein referred to as a
“mandatory sinking fund payment” and any
other amount provided for by the terms of Notes of such Series is herein
referred to as an “optional sinking fund
payment.”  If provided for by
the terms of Notes of any Series, the cash amount of any sinking fund payment
may be subject to reduction as provided in Section 12.02. Each sinking fund
payment shall be applied to the redemption of Notes of any Series as provided
for by the terms of the Notes of such Series.


 


Section 12.02         Satisfaction of Sinking Fund Payments with Notes.


 


The Company may, in satisfaction of all or any part of
any sinking fund payment with respect to the Notes of any Series to be made
pursuant to the terms of such Notes (1) deliver outstanding Notes of such
Series to which such sinking fund payment is applicable (other than any of such
Notes previously called for mandatory sinking fund redemption) and (2) apply as
credit Notes of such Series to which such sinking fund payment is applicable
and which have been repurchased by the Company or redeemed either


 


37

















 


at the election of the
Company pursuant to the terms of such Series of Notes (except pursuant to any
mandatory sinking fund) or through the application of permitted optional
sinking fund payments or other optional redemptions pursuant to the terms of
such Notes, provided that such Notes have not been previously so
credited. Such Notes shall be received by the Trustee, together with an
Officers’ Certificate with respect thereto, not later than 15 days prior to the
date on which the Trustee begins the process of selecting Notes for redemption,
and shall be credited for such purpose by the Trustee at the price specified in
such Notes for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly. If as a result of
the delivery or credit of Notes in lieu of cash payments pursuant to this
Section 12.02, the principal amount of Notes of such Series to be redeemed in
order to exhaust the aforesaid cash payment shall be less than $100,000, the
Trustee need not call Notes of such Series for redemption, except upon receipt
of a Company Order that such action be taken, and such cash payment shall be
held by the Trustee or a Paying Agent and applied to the next succeeding
sinking fund payment, provided, however, that the Trustee or such
Paying Agent shall from time to time upon receipt of a Company Order pay over
and deliver to the Company any cash payment so being held by the Trustee or
such Paying Agent upon delivery by the Company to the Trustee of Notes of that
Series purchased by the Company having an unpaid principal amount equal to the
cash payment required to be released to the Company.


 


Section 12.03         Redemption of Notes for Sinking Fund.


 


Not less than 45 days (unless otherwise indicated in
the Board Resolution, supplemental indenture or Officers’ Certificate in
respect of a particular Series of Notes) prior to each sinking fund payment
date for any Series of Notes, the Company will deliver to the Trustee an
Officers’ Certificate specifying the amount of the next ensuing mandatory
sinking fund payment for that Series pursuant to the terms of that Series, the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
of Notes of that Series pursuant to Section 12.02, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment,
and the Company shall thereupon be obligated to pay the amount therein
specified. Not less than 30 days (unless otherwise indicated in the Board
Resolution, Officers’ Certificate or supplemental indenture in respect of a
particular Series of Notes) before each such sinking fund payment date the
Trustee shall select the Notes to be redeemed upon such sinking fund payment
date in the manner specified in Section 3.02 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.03. Such notice having been duly given, the
redemption of such Notes shall be made upon the terms and in the manner stated
in Sections 3.04, 3.05 and 3.06.


 


[Signatures on following
page]


 


38

















 


SIGNATURES


 


	
  Dated as of March 27,
  2006

  	
   

  
	
   

  	
   

  
	
   

  	
  BALL CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott C.
  Morrison

  	
   

  
	
   

  	
  Name: Scott C.
  Morrison

  
	
   

  	
  Title: Vice
  President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK
  TRUST COMPANY, N.A.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sandee’
  Parks

  	
   

  
	
   

  	
  Name:

  	
  Sandee’ Parks

  
	
   

  	
  Title:

  	
  Vice President